Islamic Law and the Implementation of International Human Rights Law: A Case Study of the International Covenant on Civil and Political Rights
Chapter 18
Islamic Law and the Implementation of International Human Rights Law: A Case Study of the International Covenant on Civil and Political Rights
1. Introduction
Using the International Covenant on Civil and Political Rights (ICCPR)1 as a case study, this chapter provides a general analysis of the impact of Islamic law on the implementation of international human rights law in Muslim states where the Shari’ah is a source of law, and Islamic law (or elements thereof) is applied as part of the domestic law of the state. The relevance and prospective impact of Islamic law on international human rights law had been manifested from the very beginning of the United Nations (UN) human rights venture during the early debates on the draft provisions of the UDHR before its adoption on 10 December 1948. During the UN General Assembly’s Third Committee article-by-article consideration of the draft provisions of the UDHR in November 1948, there were objections, particularly from Saudi Arabia, about the scope of the draft provisions of the UDHR on equal rights of spouses within marriage and at its dissolution, and the right to freedom of religion including freedom to change one’s religion or belief. The scope of the provisions that eventually became Articles 16 and 18 of the UDHR, respectively, was considered by the objecting Muslim states to be contrary to Islamic law.2 For example, among the Muslim states represented at the Third Committee deliberations on the draft provisions, only Lebanon voted in favour of Article 18 of the UDHR on the right to freedom of religion, including the right to change one’s religion or belief, for which Lebanon was criticized by the other Muslim states present.3 Although the objections of the Muslim states in that regard were defeated in the end, and eight4 of the 48 UN member states who eventually voted affirmatively in the UN General Assembly for the adoption of the UDHR on 10 December 1948 were Muslim states in which Islamic law had some domestic influence, Saudi Arabia maintained its stand and abstained from the voting, apparently in pursuance of its earlier objection to the scope of Articles 16 and 18 of the UDHR respectively, on grounds of Islamic law.
Over time, most Muslim states that apply Islamic law, including Saudi Arabia, have become states parties to different international human rights treaties after the adoption of the UDHR. It has, however, been noted that Saudi Arabia’s contentions during the 1948 debates on the provisions of the UDHR ‘has resonated ever since in Islamic encounters’ with international human rights law.5 Today, many Muslim states have entered interpretive declarations and/or reservations, on grounds of the Shari’ah or principles of Islamic law, to some of the human rights treaties they have signed or ratified. Many more states that may not have entered interpretive declarations or reservations have made references to the Shari’ah or principles of Islamic law in their periodic human rights reports to relevant UN treaty bodies, all of which certainly has significant impact on the implementation of international human rights law generally and in the respective Muslim states particularly.
This chapter critically analyses such references to the Shari’ah or Islamic law in the interpretive declarations, reservations and periodic human rights reports of relevant Muslim states, with particular reference to the ICCPR. At the end, the chapter also highlights the challenges that international human rights law has, conversely, posed to Islamic law over the years and how this has impacted on the application of Islamic law and led to reforms in the law in relevant Muslim states. The scope of enquiry will be limited to those Muslim states that apply Islamic law (or elements of it) as part of their domestic law and/or have made references to the Shari’ah or Islamic law in their interpretive declarations, reservations or human rights reports. While the main human rights treaty to be examined in that regard, owing to constraints of space, is the ICCPR, references may be made to other relevant international human rights treaties for further illustration of relevant points where necessary.
2. Implementation of International Human Rights Law
It is evident that the international human rights venture initiated by the UN after the Second World War was not meant to be a mere theoretical exercise but a venture aimed at touching and improving human lives through its practical implementation universally. Although it is often highlighted that the UDHR did not provide for a specific implementation mechanism, it is important to note that in proclaiming the declaration as a common standard of achievement for all peoples and nations, the UN General Assembly also expressed a clear implementational intention by stating that effort must be made at all levels of society to ‘promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction’.6 The UDHR was the first part of the so-called international bill of rights and was subsequently followed by binding human rights treaties with provisions for specific implementation mechanisms. The implementational intention initially expressed in the UDHR has now materialized in two main ways, in the form of state obligations, under the different international human rights treaties adopted after the UDHR.
Firstly, the different human rights treaties normally contain an implementational undertaking by respective states parties to ensure the enjoyment of the rights provided under the respective treaties by all individuals within their respective territories and subject to their respective jurisdictions, and that the states will, where not already provided, adopt such laws or other necessary measures to give effect to the rights recognized under the respective treaties.7 Secondly, relevant mechanisms in the form of implementation committees are created by different human rights treaties to monitor and facilitate the practical implementation of the respective treaties by states parties.8 In both ways, states are the primary obligation holders that are expected to ensure the implementation of human rights within their respective territories and jurisdictions. The universal implementation of international human rights law is thus achieved through the combined implementation of respective human rights treaties by individual states parties in their respective territories and jurisdictions. Such implementation of human rights treaties by states parties normally occurs within their respective domestic legal systems, and it would be difficult to guarantee the implementation of any international human rights treaty without the facilitating aid of the domestic laws of respective states parties.
The importance of domestic law in facilitating the implementation of international human rights law is reflected, for example, in Article 2(2) of the ICCPR, which provides that ‘[w]here not already provided for by existing legislation or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processed and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.’ This is complemented by the general rule on the law of treaties that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’,9 whereby states are expected to change or amend any existing domestic laws that are inconsistent with the provisions of any human rights treaty to which they are parties.10 On the contrary, states may, except where a treaty prohibits it, enter interpretative declarations or reservations to modify or limit their treaty obligations in relation to their domestic laws, provided such declarations or reservations are not incompatible with the object and purpose of the treaty.11
It is in the context of domestic law that Islamic law becomes legally and formally relevant with regard to the implementation of international human rights treaties in many Muslim states.12
3. Islamic Law As Part of Domestic Law in Muslim States
Islamic law remains one of the major legal systems in the world today. It is applicable in different forms as part of state law in many countries of the Middle East, Asia and Africa. In some of these countries, such as Saudi Arabia, Yemen, Iran, Pakistan, Libya, and Sudan, and in northern Nigeria, Islamic law (or elements thereof) applies in both the areas of criminal law and personal status laws, while in most others Islamic law applies only in the areas of personal status laws13 applicable to Muslims. The constitutions of some Muslim states further provide that any laws contrary to the Shari’ah shall be null and void in the respective states.14
Traditionally, Islamic law is usually stated as having four sources, namely the Qur’an,15 the Sunnah,16 the Ijmā‘,17 and the Qiyās.18 One major misunderstanding, in that regard, is the erroneous view that all the sources of the law and the Islamic legal system generally are completely divine, immutable, monolithic and inflexible. Such misconceptions of Islamic law can create serious difficulties in its relationship with international human rights law. For example, such a misconception is reflected in the decision of the European Court of Human Rights (ECtHR) in the case of Refah Partisi (Welfare Party) and Others v Turkey, 19 wherein the court emphatically expressed its (mis) understanding that Islamic law is static and invariable and thus incompatible with human rights.
The first step to a better understanding of the nature of Islamic law is to appreciate that the terms ‘Sharī’ah’ and ‘Islamic law’ are not technically synonymous concepts. Rather, the Sharī’ah, strictly speaking, refers to the fundamental sources of Islam, namely, the Qur’an and the authenticated traditions (Sunnah) of the Prophet Muhammad (pbuh),20 both of which Muslims consider to be divine and immutable sources from which Islamic religious, moral, social, economic, political and legal norms are derived. Thus, the Sharī’ah, in the context of these two divine sources, covers more than just law – it is law plus. Conversely, Islamic law refers to the law or rulings (Ahkām; singular: Hukm) that are derived from the Sharī’ah (i.e. the Qur’an and the Sunnah) by Muslim jurists and applied by judges. Muslim jurists therefore normally talk of ‘Ahkām al-Sharī’ah’ (singular: ‘Hukm al-Sharī’ah’), meaning ‘Sharī’ah rulings’ or ‘Sharī’ah law’, i.e. rulings derived from the Sharī’ah, when referring to Islamic law as applied law. The ‘Ahkām al-Sharī’ah’ (or ‘Islamic law’) are reached through a human juristic method called ‘Fiqh’ (which literally means ‘understanding’ and technically means ‘jurisprudence’), based on the process of Ijtihād (legal reasoning); that is, human juristic understanding of the divine sources using different, well-defined classical and post-classical jurisprudential methods and principles formulated by Muslim jurists over time. Thus, it was through the medium of Fiqh, based on the process of Ijtihād, that the early Islamic jurists transformed the provisions of the Sharī’ah into applied law in the form of Ahkām al-Sharī’a or Islamic law. Ahmad Qadri has observed in that regard that the Islamic jurists were emphatic in saying that ‘though God has given us a revelation He also gave us brains to understand it; and He did not intend to be understood without careful and prolonged study.’21 Based on their human understandings of the provisions of the Sharī’ah through careful and prolonged study, the classical Islamic jurists compiled books of Fiqh (jurisprudence) containing the Ahkam al-Sharī’ah or Islamic law as derived by the different Islamic schools of law (Madhāhib) that were consequently established around the tenth century, namely the Māliki, Hanafī, Shāfi’ī and Hanbalī Sunnī schools of law, as well as the different Shī’ah schools of law that are followed respectively in different Muslims countries today. These jurisprudential rulings by the classical Islamic jurists, unlike the Sharī’ah itself, are neither divine nor immutable, but have become accepted by Muslims as established legal treatises of Islamic law in different Muslim countries today.
In that regard, Islamic law as derived rulings from the Sharī’ah can be perceived either in a historical or evolutional sense. Perceived in a historical sense, Islamic law is often restricted to the traditional rulings of the classical jurists as if those rulings were immutable, like the Sharī’ah itself. This creates a reductionist perception of Islamic law that is hinged on the disputed theory of the ‘closing of the gate of legal reasoning (Ijtihād)’ around the thirteenth century. This theory is to the effect that Islamic law must be restricted to the legal rulings of the classical jurists as recorded in the legal treatises of the established schools of Islamic jurisprudence dating back to the tenth century, a theory that, in essence, represents Islamic law as a system stuck in the past. A strict and blind adherence to the historical perception of some aspects of Islamic law can lead to contradictions between some traditional Islamic jurisprudential views and international human rights law. Conversely, the evolutional perception of Islamic law is the opposite of the historical perception, and it is to the effect that while the legal rulings of the classical jurists provide a rich source of jurisprudence they do not stop the continual development of Islamic law based on modern jurisprudence (Fiqh) through the process of continual legal reasoning (Ijtihād) by qualified jurists in Islamic law. In essence, the evolutional perception represents Islamic law as a system that evolves in necessary response to the dynamic nature of human life. Adoption of the evolutional perception of Islamic law helps to positively harmonize the apparent contradictions between some aspects of Islamic law and international human rights law.
While there are Muslim and non-Muslim commentators on Islamic law who advance a strict, historical perception of Islamic law, there is abundant theoretical and practical evidence to establish that Islamic law as ‘hkām al-Sharī’ah’ (i.e. rulings derived from the Shari’ah) through Fiqh has not actually been inherently static or immutable, but has responded and adjusted to the factors of time and circumstances since its inception. This is particularly so in respect of temporal matters pertaining to human relations (Mu’āmalāt), which are more affected by the dynamic nature of human life, in contrast to matters relating to religious observances and acts of worship (Ibādāt), which are relatively stable. It is in the different aspects of human relations (Mu’āmalat) that the evolutional nature of Islamic law has been well manifested in theory and practice over the years, since its emergence in the seventh century. There are many relevant established jurisprudential principles and maxims of Islamic law depicting its evolutional and flexible nature in both theory and practice. A relevant Islamic legal maxim in that regard is that Islamic legal rulings may change with relevant changes in time within the context of the Sharī’ah.22
In modern times legal interpretation or reasoning [in Islamic law] has occurred in the following three ways: statutory legislation, judicial decision and learned opinion (fatwa), and scholarly writings. Instances of legislative interpretation, which Noel Coulson referred to as ‘neo-ijtihad,’ can be found in the modern reforms of family law in many Muslim countries, particularly with reference to polygyny and divorce, both of which have been made contingent upon a court order, and therefore are no longer the unilateral privilege of the husband. Current reformist legislation on these subjects derives some support from the jurists’ doctrines of the Maliki and Hanafi schools, but these reforms are essentially based on novel interpretation of the Quran’s relevant portions. Numerous instances of independent reasoning are also found in the views of the ulama [religious scholars], such as the collections of published opinions of Muhammad Rashid Rida in the 1920s and those of the late shaykh of Azhar, Mahmud Shaltut, in the 1950s. In the 1967 case of Khursid Bibi vs. Muhammad Amin, the supreme court of Pakistan’s decision to validate a form of divorce, known as khula, that can take place at the wife’s initiative, even without the consent of the husband, can be cited as an example of judicial ijtihad. Another example of ongoing reinterpretation is the scholarly contribution of the Egyptian scholar Yusuf al-Qaradawi, who validated air travel by women unaccompanied by male relatives. According to the rules of fiqh that were formulated in premodern times, women were not permitted to travel alone. Al-Qaradawi based his conclusion on the analysis that the initial ruling was intended to ensure women’s physical and moral safety, and that modern air travel fulfills this requirement. He further supported this view with an analysis of the relevant hadiths on the subject and arrived at a ruling better suited to contemporary conditions.23
Thus, current Islamic jurisprudential trends clearly demonstrate that the humane objectives of the Shari’ah can be better realized through the evolutional perception of Islamic law in a continually changing world, especially in relation to international human rights law, as will be further argued below.
4. The Impact of Islamic Law on the ICCPR in Muslim States24
The ICCPR, adopted in 1966 and entered into force in 1976, guarantees 24 substantive civil and political rights, generally reflecting basic ideals of freedom, liberty, equality and security. The rights guaranteed under the covenant are the right of self-determination; the equality of rights between men and women; the right to life; the right to freedom from torture or cruel, inhuman or degrading treatment or punishment; the right to freedom from slavery, servitude and forced labour; the right to liberty and security of person; the right to a humane incarceration system; the right to freedom from imprisonment for contractual obligation; the right to liberty of movement and choice of residence; the right of aliens to freedom from arbitrary expulsion; the right to a fair hearing and the due process of law; the right to freedom from retroactive criminal laws; the right to recognition as a person before the law; the right to privacy; the right to freedom of thought, conscience and religion; the right to freedom of opinion and expression; the prohibition of propaganda for war and incitement to hatred; the right to peaceful assembly; the right to freedom of association; the right to marry and found a family; the rights of the child; the right to political participation; the right to equality before the law; and the rights of ethnic, religious or linguistic minorities.
Over the years, many Muslim states that apply Islamic law (or elements of it) as part of their domestic laws have become states parties to the ICCPR. These include countries such as Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Gambia, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Maldives, Mali, Mauritania, Morocco, Nigeria, Sudan, Syria, Tunisia and Yemen. Conversely, some prominent Muslim states in which Islamic law applies significantly as part of domestic law, such as Brunei, Comoros,25 Malaysia, Oman, Pakistan,26 Qatar, Saudi Arabia and the United Arab Emirates have not yet ratified the covenant. While it could be postulated that Islamic religious considerations and the role of Islamic law in the domestic laws of these Muslim states might have an apparent role in their non-ratification of the ICCPR, it is difficult to make a definite conclusion in that regard without the respective states specifically stating so. It has been rightly observed that, regardless of the influence of the Shari’ah or Islamic law on the ratification practices of Muslim states, there are still many ambiguous reasons, other than Islamic law, why a particular Muslim state may or may not ratify a particular human rights treaty.27
It is evident, however, that some of the Muslim states parties to the ICCPR, such as Algeria, Bahrain, Egypt, Maldives, Mauritania and Kuwait, have entered interpretative declarations or reservations to the covenant on grounds of the Shari’ah or Islamic law, which definitely impacts, in one way or another, on the implementation of the covenant in the respective states. Generally, such declarations and reservations relate mainly to Article 3 on equality of rights between men and women; Article 18 on the right to freedom of thought, conscience and religion; and Article 23 on the right to marry and found a family, particularly the equal rights of spouses within a marriage and at its dissolution,28 all of which reflects the objection made by Saudi Arabia, on grounds of Islamic law, against Articles 16 and 18 of the UDHR earlier in 1948. The declarations and reservations are analysed below.
4.1 Article 3 Reservations and Declarations on Grounds of Islamic Law
Under Article 3 of the ICCPR, the state parties ‘undertake to ensure the equal rights of men and women to the enjoyment of all civil and political rights’ guaranteed under the covenant. Bahrain is the only state that, on accession to the covenant, entered a reservation to Article 3 specifically on grounds of Islamic law, stating that it will interpret the article ‘as not affecting in any way the prescriptions of Islamic Shari’ah’. Although this reservation is specific to Article 3, it has a far-reaching effect that extends to all the other articles of the covenant. The consequence of this reservation is that Bahrain does not undertake to ensure the equal rights of men and women within its territory and jurisdiction to enjoy all the civil and political rights guaranteed under the covenant, if that is considered violative of its interpretation of Islamic law. This could lead to discriminatory application of the provisions of the ICCPR principally to women, but also to men, depending on the state’s interpretation of the prescriptions of Islamic Shari’ah on particular provisions of the covenant, especially where a historical rather than evolutional perception of Islamic law is adopted by the state.29 Bahrain’s reservation was, however, rejected by the UN Secretary-General, as depository of multi-lateral treaties, owing to objections received from other states parties to the covenant in that regard.30 As Bahrain has not yet submitted any periodic report to the Human Rights Committee (HRC) in respect of the ICCPR, it is not possible to appraise its position for the time being on the reservation and its rejection by the UN Secretary-General.
Of relevance also is the interpretive declaration entered by Kuwait to Article 3 to the effect that the rights guaranteed under Article 3 would be ‘exercised within the limits set by Kuwaiti law’. While Islamic law is not specifically referred to in this interpretive declaration, the reference to ‘Kuwaiti law’ indirectly relates to Islamic law, as Kuwait made it clear in its other interpretive declaration to Article 23 that its personal status laws are based on Islamic law. This indirect relation to Islamic law was identified in the consideration of Kuwait’s 1999 initial periodic report to the HRC, whereby the committee concluded that this interpretive declaration contravenes the state party’s essential obligations under the covenant, and it thus urged the state to withdraw it.31 The committee referred in particular to the Kuwaiti Personal Status Code, expressing concern that the code accommodated discriminative practices against women, and it thus urged the state to ensure equality between men and women both in law and practice, to prohibit polygamy, and ‘to take all necessary measures to sensitize the population, so as to eradicate attitudes that lead to discrimination against women in all sectors of daily life and society’.32
Contrary to the reservation and declaration to Article 3 by Bahrain and Kuwait, respectively, other Muslim states parties to the ICCPR, who also apply Islamic law as part of their domestic law, generally indicate in their periodic reports to the HRC that their compliance with Article 3 of the covenant is not impeded by their interpretations and applications of Islamic law.33 This does not, however, detract from the fact that some traditional historical interpretations of Islamic law may facilitate substantial gender discrimination in practice in almost all Muslim states, contrary to the envisaged scope of Article 3 of the ICCPR and similar equality of rights provisions such as Article 3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)34 and Article 3 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).35
4.2 Article 18 Reservations on Grounds of Islamic Law
Article 18 of the ICCPR guarantees freedom of thought, conscience and religion. The initial draft of the article included ‘freedom to change one’s religion or belief’ as in Article 18 of the UDHR, which was opposed by Muslim states such as Afghanistan, Egypt, Saudi Arabia and Yemen.36 As a compromise, this was changed to include, instead, ‘freedom to have or to adopt a religion or belief of [one’s] choice’.37 The HRC has, however, indicated in its General Comment 22 that the freedom to have or to adopt a religion of one’s choice includes the freedom to change one’s religion or belief.38 The Saudi Arabian representative who had proposed the change during the debates on Article 18 at the Third Committee meeting is recorded to have indicated after the amendment that he did recognize that the freedom to change one’s belief or religion was still implicit in Article 18 of the ICCPR, despite the amendment.39 It is this understanding that has, perhaps, influenced the declarations and reservations entered to the article by some Muslim states on grounds of Islamic law.
Bahrain’s reservation mentioned earlier above also referred to Article 18 with the effect that it will interpret Article 18 ‘as not affecting in any way the prescriptions of Islamic Shari’ah’. Similarly, on accession to the ICCPR, Maldives entered a reservation stating that ‘the application of the principles set out in Article 18 of the covenant shall be without prejudice to the Constitution of the Republic of Maldives’. This can be considered as an indirect reference to Islamic law, as Article 10 of the constitution of Maldives provides that ‘Islam shall be one of the bases of all the laws of Maldives’ and that ‘No law contrary to any tenet of Islam shall be enacted in the Maldives’. Further, the fundamental rights and freedoms under the Maldivian constitution are themselves guaranteed to all persons ‘in a manner that is not contrary to any tenet of Islam’.40 Thus, in its objection to the Maldivian reservation, Slovakia noted, inter alia, that ‘[a]ccording to the Maldivian legal system, mainly based on the principles of Islamic law, the reservation raises doubts as to the commitment of the Republic of Maldives to its obligations under the Covenant, essential for the fulfilment of its object and purpose.’41 Another Muslim country that has entered a reservation to Article 18 on grounds of Islamic law is Mauritania, which stated that its application ‘shall be without prejudice to the Islamic Shari’ah’, meaning, in essence, that the scope of the article will be curtailed by the provisions of Islamic law on freedom of religion.
Islamic law does acknowledge the general concept of freedom of religion based on specific provisions of the Qur’an such as ‘Let there be no compulsion in religion: Truth stands out clearly from Error’42 and ‘Had your Lord willed so everyone on earth would have believed; would you then compel people to become believers?’43